This Default Costs Certificate confirms the procedural consequences of a respondent’s failure to engage with the costs assessment process in the DIFC Court of First Instance, resulting in a summary award of AED 190,877.76.
What was the nature of the dispute between Hepher Associates and Rasana Engineering Industries Co that led to the assessment of AED 190,877.76?
The underlying litigation, registered under case number CFI-043-2017, involved the Claimants, Hepher Associates Ltd and Trevor Anscombe, and the Defendant, Rasana Engineering Industries Co. LLC. Following a substantive judgment delivered by H.E. Justice Shamlan Al Sawalehi on 5 May 2019, the Claimants sought to recover their legal costs incurred throughout the proceedings. The assessment process was initiated on 19 August 2019 when the Claimants filed their Notice of Commencement of Assessment.
The dispute reached a critical juncture when the Defendant failed to respond to the assessment process. By neglecting to file points of dispute within the prescribed timeframe, the Defendant effectively waived its right to challenge the quantum of costs claimed by the Claimants. Consequently, the Deputy Registrar issued a Default Costs Certificate, formalizing the liability of the Defendant for the full amount requested. As noted in the order:
The Defendant is ordered to pay the Claimants a total of AED 190,877.76 within 21 days from the date of this Default Costs Certificate.
The finality of this certificate underscores the importance of strict adherence to the procedural timelines set out in the Rules of the DIFC Courts (RDC) regarding cost recovery. Further details on the procedural history can be found at the DIFC Courts website.
Which judicial officer presided over the issuance of the Default Costs Certificate in CFI-043-2017?
The Default Costs Certificate was issued by Deputy Registrar Nour Hineidi on 18 December 2019. The order was made within the Court of First Instance, following the procedural failure of the Defendant to respond to the Claimants' Notice of Commencement of Assessment filed earlier that year.
Why did the Claimants, Hepher Associates and Trevor Anscombe, seek a Default Costs Certificate against Rasana Engineering Industries Co?
The Claimants sought the certificate because the Defendant failed to adhere to the mandatory procedural requirements for challenging a bill of costs. After the Claimants filed their Notice of Commencement of Assessment on 19 August 2019, the Defendant was required to file "points of dispute" to contest the specific items or the total amount of costs claimed.
By failing to file these points of dispute within the 21-day window mandated by the RDC, the Defendant left the Claimants with no alternative but to apply for a default certificate. The Claimants supported their request with a statement filed on 18 November 2019, which provided the necessary evidentiary basis for the Deputy Registrar to grant the order in the full amount of AED 190,877.76.
What was the precise jurisdictional and procedural question before Deputy Registrar Nour Hineidi regarding the application of RDC Rule 40.17?
The core question before the Deputy Registrar was whether the procedural conditions precedent for the issuance of a Default Costs Certificate had been satisfied. Specifically, the Court had to determine if the Defendant had been afforded the requisite time to contest the costs and whether the Claimants had complied with the service and filing requirements under the RDC.
The issue was not the merits of the underlying legal fees, but rather the procedural consequence of the Defendant’s silence. The Court had to verify that the Notice of Commencement of Assessment was properly served and that the 21-day period for the Defendant to file points of dispute had expired without any such filing. Once these procedural facts were established, the Court was required to exercise its authority under Rule 40.17 to grant the certificate as a matter of course.
How did Deputy Registrar Nour Hineidi apply the test for default under the RDC to the facts of CFI-043-2017?
The reasoning employed by the Deputy Registrar was strictly procedural, focusing on the failure of the Defendant to engage with the assessment process. The Court verified that the Claimants had initiated the process correctly by filing a Notice of Commencement of Assessment on 19 August 2019. The Court then confirmed that the Defendant had failed to file points of dispute within the 21-day period stipulated by Rule 40.15.
Having confirmed the Defendant’s non-compliance, the Deputy Registrar reviewed the statement in support of the Request filed by the Claimants on 18 November 2019. Finding that the request was procedurally sound and that the underlying judgment of H.E. Justice Shamlan Al Sawalehi (dated 5 May 2019) provided the legal basis for the costs, the Deputy Registrar granted the request. The order served as a final determination of the costs payable:
The Defendant is ordered to pay the Claimants a total of AED 190,877.76 within 21 days from the date of this Default Costs Certificate.
Which specific RDC rules were applied by the Court to reach the decision in this matter?
The Court relied on three specific rules within the Rules of the DIFC Courts (RDC) to justify the issuance of the Default Costs Certificate:
- RDC Rule 40.5: This rule governs the initial requirement for the party seeking costs to file a Notice of Commencement of Assessment, which the Claimants fulfilled on 19 August 2019.
- RDC Rule 40.15: This rule establishes the 21-day timeframe during which a respondent must file points of dispute if they wish to challenge the costs claimed. The Defendant's failure to act under this rule was the primary trigger for the default.
- RDC Rule 40.17: This rule provides the authority for the Court to issue a Default Costs Certificate when the respondent has failed to file points of dispute within the time permitted.
How did the Court utilize the judgment of H.E. Justice Shamlan Al Sawalehi in the assessment process?
The judgment of H.E. Justice Shamlan Al Sawalehi, issued on 5 May 2019, served as the foundational authority for the costs assessment. In the DIFC Court system, a costs assessment is a secondary process that relies on the primary judgment to establish the entitlement to costs. The Deputy Registrar reviewed this judgment to ensure that the Claimants were indeed the prevailing parties entitled to recover their legal expenses. By confirming the existence of the 5 May 2019 judgment, the Deputy Registrar established the legitimacy of the Claimants' request for the recovery of AED 190,877.76.
What was the final disposition and the specific relief granted to the Claimants?
The Request for a Default Costs Certificate was granted in its entirety. The Defendant, Rasana Engineering Industries Co. LLC, was ordered to pay the Claimants, Hepher Associates Ltd and Trevor Anscombe, the sum of AED 190,877.76. The order mandated that this payment be made within 21 days from the date of the certificate, which was 18 December 2019. No further adjustments or reductions were made, as the Defendant had forfeited its opportunity to contest the figures by failing to file points of dispute.
What are the wider implications for litigants in the DIFC regarding the management of costs assessments?
This case serves as a stark reminder of the risks associated with ignoring procedural notices in the DIFC Courts. Litigants must treat the "Notice of Commencement of Assessment" with the same level of urgency as a claim form. Failure to file "points of dispute" within the 21-day limit under RDC Rule 40.15 effectively precludes a party from challenging the reasonableness or proportionality of the costs claimed.
Practitioners should anticipate that the DIFC Courts will strictly enforce these timelines, and once a Default Costs Certificate is issued, the liability for the full amount becomes crystallized and enforceable. Parties should ensure that their internal docketing systems flag these deadlines immediately upon receipt of a Notice of Commencement of Assessment to avoid the summary imposition of significant financial liabilities.
Where can I read the full judgment in Hepher Associates v Rasana Engineering Industries Co [2019] DIFC CFI 043?
The full text of the Default Costs Certificate can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0432017-1-hepher-associates-ltd-2-trevor-anscombe-v-rasana-engineering-industries-co-llc-2. The document is also available on the CDN at: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-first-instance/DIFC_CFI-043-2017_20191218.txt.
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| Hepher Associates v Rasana Engineering Industries Co | CFI-043-2017 (Judgment dated 5 May 2019) | Established the entitlement to costs. |
Legislation referenced:
- Rules of the DIFC Courts (RDC) Rule 40.5
- Rules of the DIFC Courts (RDC) Rule 40.15
- Rules of the DIFC Courts (RDC) Rule 40.17